What Andrew Cuomo’s Abortion Proposal Says About Access in 2013

Cuomo’s plan is being cheered by abortion rights activists and panned by anti-abortion groups, including the Catholic Church. But the truth is, Cuomo’s plan is more about symbolism than changing much of anything for women’s reproductive health—in New York state or anywhere else.

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There are two Americas when it comes to abortion—one in which it’s nearly impossible to terminate an unwanted pregnancy, and one in which access to the procedure is mostly unfettered and often publicly financed. Geography is everything. While abortion has been a federally protected right for 40 years, in some states, women must travel hundreds of miles and devote days to terminating pregnancies; poor women who can’t afford to pay out of pocket must find privately-funded organizations to pick up the tab. In others, obtaining an abortion is logistically as simple as making and showing up to a standard doctor’s appointment.

New York is one of the latter, with few abortion restrictions and greater access to the procedure than nearly any other state. Gov. Andrew Cuomo reportedly wants to widen access even further and has proposed rewriting a state law that now limits abortions after 24 weeks of pregnancy to women whose lives are in danger. Cuomo’s proposal, as reported by the New York Times, would also allow abortions after 24 weeks to protect a woman’s health. According to the New York Times, Cuomo wants to ensure wide access to abortion in New York state is on the books in case the Supreme Court ever overturns Roe v. Wade.

Cuomo’s proposal is being cheered by abortion rights activists and panned by anti-abortion groups, including the Catholic Church. But the truth is, Cuomo’s plan is more about symbolism than changing much of anything for women’s reproductive health—in New York state or anywhere else.

Even though the New York state’s current law doesn’t explicitly allow late-term abortions to protect a woman’s health, Roe v. Wade said that abortions that take place after a fetus might be able to survive on its own outside the womb are permissible to protect the life or health of the woman who is pregnant. So Cuomo’s propsal, which is not new, may not significantly alter the legal landscape for women, although some providers may be more willing to perform late-term abortions if Cuomo’s proposal takes effect. (It must be passed by the state legislature.) Despite Roe v. Wade’s distinction that late-term abortions must be legal to protect the life and health of the mother, some states have outlawed late-term abortions without including these exceptions. Many are now being challenged in court and Cuomo’s proposal is meant to reinforce the current Roe v. Wade standard. In any case, late-term abortions are extremely rare. Nationwide, less than two percent of abortions take place after 21 weeks; about 90 percent happen before 12 weeks of pregnancy.

And New York is not a battleground in the war over abortion access in 21st century America. Anti-abortion activists largely see New York as a lost cause and are not targeting it as a place they can push for new state laws to curtail access to abortion. For abortion rights activists, New York has is merely continuing its long tradition of liberal abortion laws. Before the Supreme Court’s Roe v. Wade ruling in 1973, which made abortion a federally protected right, New York was one of several states that already allowed women to terminate pregnancies.

Access today is already widespread and New York does not impose restrictions on abortion that are increasingly common elsewhere. Women seeking abortions in New York to not have to undergo waiting periods, parental consent or notification procedures or mandatory ultrasounds. New York is one of a handful of states that voluntarily provides coverage for abortion under Medicaid. In part because abortion is publicly funded for women on Medicaid and because the state has more abortion providers per capita than many others, the abortion rate in New York State is nearly twice the national rate, with about 39 abortions per 1,000 women age 15-44 in 2008, the last year data is available from the Guttmacher Institute, a reproductive rights organization whose statistics are cited by both pro-life and pro-choice activists. In 2008, abortions that took place in New York state represented nearly 13% of all abortions in the U.S. According to Guttmacher, just 7 percent of women in New York state live in counties the lack an abortion provider, compared to about 30 percent of women nationwide.

Still, Cuomo’s move to widen access even further goes against a tide of restrictive state laws making it extremely arduous to obtain abortion services in some parts of the country. As I wrote in a recent Time cover story, in parts of the South and Midwest, it is more difficult to access abortion than at any point since Roe v. Wade was decided in 1973. There are four states that have just a single abortion provider and some 40 percent fewer providers nationwide now compared to the 1980s. In recent years, anti-abortion activists have successfully lobbied for state laws that make getting abortion more time-consuming and expensive. They have also succeeded in persuading some states to pass zoning laws and other regulations that make it hard for independent abortion clinics to stay open.

Anti-abortion activists have pursued these state-level regulations at the same time they have been trying to land a new abortion case before a sympathetic Supreme Court. If pro-life efforts at the state level are any guide, these activists may one day succeed, which is why abortion rights groups want governors like Cuomo want to make it explicitly clear that abortion will be available in states even if the procedure is no longer protected by federal law.

The prospects for Cuomo’s Reproductive Health Act are uncertain. The split state legislature, which recently legalized gay marriage (with help from some Republicans), will have to contend with public opinion. According to Gallup, 79 percent of pro-choice Americans believe abortion should be illegal in the third trimester of pregnancy.